Samantha L. Fawcett
Federal law prohibits individuals subject to a domestic violence protective order (§ 922(g)(8)) or convicted of domestic violence misdemeanors (§ 922(g)(9)) from possessing firearms. Before New York State Rifle and Pistol Association v. Bruen, these commonsense gun laws had generally been considered uncontroversial, both in terms of their broad popular support and their constitutionality under the Second Amendment. In Bruen, however, the Supreme Court held that when a regulation burdens a Second Amendment right, the regulation must be consistent with American historical tradition, meaning that the regulation must be analogous to a pattern of historical firearm regulation.
After Bruen, the domestic violence firearm prohibitors have faced Second Amendment constitutional challenges in courts around the country. The most noteworthy of these cases is a Fifth Circuit case, United States v. Rahimi, which held that the domestic violence misdemeanor firearm ban was unconstitutional because it was not sufficiently analogous to American historical firearm regulation. The Fifth Circuit is the first federal appeals court to examine one of the domestic violence firearm prohibitors after Bruen, and the government swiftly announced its intent to appeal the decision.
Because Congress only began regulating domestic violence in the twentieth century, a time period explicitly carved out of the Bruen historical analysis, courts must perform an analysis based in analogy to uphold the constitutionality of the domestic violence firearms prohibitors. Although these complications under the Bruen standard may spark discussion of the decision’s logic, this Note meets the law where it is and aims to argue for the constitutionality of these prohibitors within the Bruen framework. Indeed, for Bruen to remain internally consistent and instruct a workable doctrine, domestic violence restrictions on firearm ownership must survive Second Amendment constitutional scrutiny, as they have since their inception.
